Citation Nr: 1448090
Decision Date: 10/30/14 Archive Date: 11/05/14
DOCKET NO. 09-05 595 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to February 16, 2009.
3. Entitlement to an initial rating in excess of 50 percent for PTSD.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
M.H. Stubbs, Counsel
INTRODUCTION
The Veteran served on active duty from June 1982 to February 1994.
These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2007 (PTSD) and October 2011 (tinnitus) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating. Id. at 453. Here, however, the 2012 VA examination revealed that the Veteran continued to be employed full time with a transportation company. Without evidence of a lack of employment, or of marginal employment, the Board will not initiate a TDIU claim.
The issue(s) of issue of entitlement to a rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Tinnitus was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that tinnitus is related to active military service.
2. Prior to February 16, 2009, the Veteran's PTSD manifested in symptoms and signs with occupational and social impairment with reduced reliability and productivity.
CONCLUSIONS OF LAW
1. Tinnitus was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.
2. The criteria for an initial rating of 50 percent, prior to February 16, 2009, for the Veteran's service connected PTSD, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.130 , Diagnostic Code 9411 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A.
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).
In the instant case, correspondence dated July 2005 (anxiety disorder), March 2007 (PTSD) and November 2007 (tinnitus) notified the Veteran of information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The 2007 letters additionally included notice regarding the degree of disability and effective date. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary.
With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records, as well as his post-service medical treatment records have been obtained.
The Veteran was afforded a VA examinations in March 2007 (PTSD), August 2011 (tinnitus), and February 2012 (PTSD). The examiners reviewed the Veteran's claim file, past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examination reports are adequate for the purpose of rendering decisions on the current appeals. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise.
The Veteran was provided with the opportunity to testify at a hearing, but he declined this opportunity. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision.
Service Connection
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b).
Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Here, tinnitus is not a "chronic condition" under38 C.F.R. § 3.309, and so continuity of symptomatology is not an alternative method of establishing in-service incurrence or a causal relationship between a current disability and an in-service disease or injury.
Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994).
VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. §§ 1154(a). Under 38 U.S.C.A. §§ 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377, n.4.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In May 2011, the Veteran filed a claim of entitlement to service connection for tinnitus. He noted that his tinnitus began in 2009.
A review of service treatment records does not reveal a diagnosis of tinnitus, or complaints of tinnitus, in service.
In August 2011, the Veteran was afforded a VA audio examination. The Veteran complained of tinnitus "noted over the past 10 years." The functional effect of the tinnitus was to cause difficulty hearing people, difficulty listening to the radio, and difficulty concentrating because it was difficult to listen. He reported a military noise exposure history which included exposure to small arms fire, heavy artillery, mortars, grenades, helicopters and tanks. He denied a significant history of occupational or recreational noise exposure. The examiner opined that the Veteran's tinnitus was less likely as not due to noise exposure in service because of the late date of reported onset of tinnitus.
On September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration issued Fast Letter 10-35. The subject was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. The letter introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus.
The Fast Letter indicated that when a claim for tinnitus is received, if there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event.
A review of the Duty MOS Noise Exposure Listing shows that the Veteran's MOS as a Medical NCO had a low probability of exposure to hazardous noise, and as such, hazardous noise exposure will not be conceded for the purposes of establishing an in-service event.
In October 2012, the Veteran filed a notice of disagreement with the denial of service connection for tinnitus. He did not provide any further argument regarding his disagreement with the denial.
In a February 2014 statement, the Veteran argued that he "never reported that his tinnitus started 10 years" prior, and that he stated that his tinnitus worsened ten years ago. He argued that his tinnitus began in the military, and that he did not know the exact date "so [he] did not answer that question" during the VA examination. He stated that he served 3 years as a flight medic flying in helicopters and as a medic in an Armor Battalion. He stated that all twelve years of his service as a combat medic involved being in a "different noise environment."
In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.)
With tinnitus, the Veteran is competent to report the onset of the disease, as it is a completely subjective disease. Here, however, the Board finds that the evidence does not support the credibility of the Veteran's February 2014 statement. On his May 2011 claim, the Veteran reported that his tinnitus began in 2009 (this is written on the form by the Veteran, and signed by the Veteran). During his 2012 VA examination, the examiner recorded that the Veteran reported his tinnitus began 10 years prior (2002). It was not until after the Veteran's tinnitus claim was denied that he reported his tinnitus began in service. The Board also notes that the Veteran served as a medic but never reported tinnitus (a condition he likely would have recognized) during service. While the Veteran's statements regarding his noise exposure as a medic in service are credible, the Board finds that his statements regarding the onset of his tinnitus are not credible.
As the preponderance of the credible evidence suggests that the Veteran's tinnitus began roughly 8 years after his discharge from service, and a VA examiner has provided a negative nexus opinion regarding the Veteran's "late onset" tinnitus, the Board finds that entitlement to service connection for tinnitus is not warranted.
In the absence of any persuasive evidence that the Veteran's tinnitus is etiologically related to active service, service connection is not warranted and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Increased Ratings
Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999).
The Board notes that the Veteran's service-connected PTSD is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).
The Veteran's service-connected PTSD has been evaluated as 30 percent disability rating under 38 C.F.R. § 4.130 , Diagnostic Code 9411 prior to February 16, 2009, and 50 percent thereafter. The actual criteria for rating psychiatric disabilities other than eating disorders are contained in a General Rating Formula.
Under that formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).
A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.
A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.
A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.
Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14.
On his July 2005 formal claim, the Veteran requested service connection for an anxiety disorder. He noted that his disability began in Jun 1991, and that he was first treated for his anxiety disorder in May 2005.
The earliest treatment record in the virtual record is from June 2005. At that time the Veteran complained of anxiety/panic attacks at night, which had been ongoing for years. He reported that he recently had a severe panic attack. He was assessed with anxiety attacks and was prescribed Ativan to treat his anxiety. Later in June 2005, he reported he was "feeling fine." In July 2005, the Veteran sought a refill of his medications because he felt that they helped him "relax and sleep." He stated that he had a "bad night" recently.
In November 2005, the Veteran was initially seen by the Behavioral Medicine Montgomery Office. The private initial psychiatric evaluation is contained in the virtual record. During the evaluation, the Veteran was neatly groomed. He complained of problematic dreams of his time in Iraq. He stated that in his most recent dream he became physically engaged with his fiancé, and reportedly struck her with his fist in his sleep. He also complained of social isolation and variable libido. He reported being arrested in 1995 due to a domestic dispute. He also reported drinking three alcoholic beverages a night. During the interview, the Veteran was polite, cooperative and pleasant. His speech was soft, but logical and goal directed. He reported nightmares two to three times per week. He also attempted to avoid material that reminded him of his tour in Iraq. He "described his relationship with his girlfriend of the past one and one-half years in glowing terms." He was diagnosed with PTSD and a personality disorder not otherwise specified.
In December 2005, the Veteran reported that his therapy made him less "edgy." In October 2006, the Veteran reported job-related stress due to a four day suspension. He reported he dreams were less pronounced, and that he felt "a lot better" on his medication.
In March 2007, the Veteran was afforded an initial PTSD evaluation. The Veteran served in the U.S. Army for 12 years, included service in Operation Desert Storm/Desert Shield. He was awarded the Combat Medical Badge and a Presidential Unit Citation for valor, among other awards, during his service. He spent five months in a war zone in 1991. He reported that he was arrested for assault on his ex-wife while they were going through a divorce. He was required to attend anger management classes at that time. At the time of the examination, he was marred for a second time. He attended church, but he otherwise did not socialize outside of work. He reported that he sought treatment for his symptoms because his current wife suggested he get help for his anger problems.
On mental status examination, the Veteran was neatly groomed and cooperative. He was, however, tense and anxious. His speech was unremarkable, but his affect was constricted. His thought process, thought content and orientation were normal. He denied delusions and hallucinations. His judgment and insight were average. The Veteran described a sleep impairment, where he slept three to four hours a night without medication, and about six hours a night with medication. He was noted to have inappropriate behavior, in that he was angered easily. He endorsed panic attacks "a few times going over bridges." He denied homicidal thoughts, but endorsed suicidal thoughts, without plan or intent. He related that he would "hold his emotions in and then explode" when discussing his problems with impulse control. He had mildly impaired recent memory, but normal remote and immediate memory. He reported he disliked crowds or traveling long distances. At the time of the examination, the Veteran was employed full time. He reported losing two weeks of work in the prior year due to his PTSD.
The examiner diagnosed PTSD, and moderate major depression. The depression was noted to be secondary to the PTSD. His GAF score at the time of the examination was 60. The examiner noted that the Veteran was using good coping skills but that he was at times unable to control his anxiety. The Veteran noted that his PTSD caused him to have panic on the way to work, to be irritable with others, to be unable to continue with additional education, to avoid activities, and to be somewhat isolative. The examiner found that the Veteran was "a rather fragile person. There does not seem to have been much improvement in the last 13 years. There is not likely to be substantial improvement [in his psychiatric condition]." The examiner found that the Veteran had reduced reliability and productivity due to his PTSD symptoms. She found that his PTSD signs and symptoms did not result in deficiencies in most areas (judgment, thinking, family relations, work, mood or school).
In March 2008, the Veteran reported anxiety and sleep disturbance to his private psychiatric provider. He discussed multiple stressors in his life. In October 2008, the Veteran reported nightmares about a work accident, and hallucinations of a woman committing suicide by train. He indicated he felt guilt and grief regarding this incident. In January 2009, he reported increased irritability and a lack of interest in previously enjoyed activities.
On February 16, 2009, the Veteran reported suicidal ideation and visual/auditory hallucination of a woman's suicide by train. His medications were adjusted. In March 2009, the Veteran reported daily suicidal ideation, but without intent or plan. He failed to reduce his alcohol intake, and felt that he was depressed.
In August 2005, the Veteran submitted three lay statements in support of his claim. His mother provided a statement that the Veteran returned from the Gulf War a changed man. He would "become upset about a little of nothing. He could not sleep and he complained of having terrible headaches." She also noted that he would sometimes sit quietly and speak to no one, and other times he would become loud and disruptive. His younger brother provided a statement that the Veteran returned from Desert Storm with anger and control problems. The Veteran would be easily agitated and angered, and there were times "he became violent and had to be restrained." After his divorce, the Veteran lived with another brother, who reported the Veteran would wake up in the middle of the night and "run from the apartment yelling."
Additionally, in August 2005, the Veteran's ex-wife provided a statement in support of his claim. She noted that they were married for ten years, and that the marriage was "good until he returned from the Gulf War." She stated sent their two children to live with her mother after he returned from the war because he was angry, violent and paranoid. She stated he had nightmares and would jump out of his sleep, scream and yell and look for a gun. She stated that she and the Veteran's mother tried to convince him to get professional help, but that he refused at that time.
In a September 2007 rating decision, the Veteran was granted entitlement to service connection for PTSD and given an initial 30 percent rating effective July 15, 2005 (the date of his claim). In a December 2009 Supplemental Statement of the Case (SSOC) the RO increased the Veteran's rating for PTSD to 50 percent effective February 16, 2009, the date of a private treatment record which showed that the Veteran had suicidal ideation and audio/visual hallucinations. On January 2010, the Veteran indicated he was not satisfied with his PTSD ratings, but did not provide additional argument or statement.
Having carefully reviewed the evidence of record, the Board finds that the evidence of record supports the assignment of a 50 percent evaluation for PTSD prior to February 16, 2009. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.7. The evidence shows that, prior to June 23, 2009, the Veteran's service-connected psychiatric disorder more nearly approximated social and occupational impairment with reduced reliability and productivity due to the frequency and severity of his PTSD symptoms. There is no current basis for a staged rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings"); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings).
Regarding the Veteran's credibility, the Board finds that the Veteran has been credible and consistent in reporting the symptoms of his PTSD. He has additionally provided statements from his family members and his ex-wife which relate the same symptoms he has reported to health care professionals.
Prior to February 16, 2009, the lay and medical evidence of record showed that the Veteran's PTSD manifested in symptoms of sleep disturbance, nightmares, irritability, reduced impulse control, anger, isolative tendencies, increased alcohol consumption, and anxiety. The Veteran additionally endorsed "panic attacks" which he found to be severe. There is no indication in the record regarding how frequently the Veteran experienced panic attacks, but he indicated they happened at night, so were perhaps tied to his nightmares. He described nightmares that involved physical reactions, including striking his girlfriend in his sleep. Beginning with the 2007 VA examination, the Veteran endorsed suicidal ideation without intent or plan. By February 16, 2009, the Veteran also reported he had experienced a hallucination of a woman committing suicide by train. It is unclear from the record if this incident actually occurred during the Veteran's employment, and he was re-experiencing the suicide, or if this was simply a created hallucination.
The Veteran has received only one GAF score during the period prior to February 16, 2009, and it was during his 2007 VA examination. The examiner assigned a GAF score of 60, which indicates moderate symptoms. Overall, the Veteran's symptoms of nightmares, anxiety, irritability, and sleep disturbance appear to be of a moderate severity. His suicidal ideation is a serious symptom.
Overall, the Board finds that prior to February 16, 2009, the symptoms have most nearly approximated a 50 percent rating. As to whether a rating in excess of 50 percent is warranted, the Board has determined that further development is required. This development is addressed in the REMAND below.
In summary, the Board concludes that the preponderance of the evidence supports an initial increased rating to 50 percent for the Veteran's service-connected PTSD, prior to February 16, 2009.
ORDER
Entitlement to service connection for tinnitus is denied.
Entitlement to an initial 50 percent rating for PTSD, prior to February 16, 2009, is granted.
REMAND
Unfortunately, a remand is required in regards to the Veteran's increased rating claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326, are met.
In his September 2014 appellant brief, the Veteran's representative noted that the Veteran's PTSD "has increased in severity, and justifies a higher rating due to the impact and constriction it places upon his daily activities." The representative noted that they were unable to locate a VA psychiatric examination in the virtual record, and requested that the Veteran be provided with a current PTSD assessment.
The Board notes that the virtual record does contain two PTSD examination, one in 2007 and one in 2012. However, as the private psychiatric treatment records are only current to 2010, and the Veteran has indicated his PTSD symptoms have increased in severity, the Board finds that an additional examination is necessary to further evaluate the current severity of his PTSD.
Additionally, the Board notes that the 2012 VA examiner noted that the Veteran's PTSD symptoms had mildly increased since his 2007 examination, but then found that his symptoms only caused intermittent periods of inability to perform occupational tasks. The 2007 examiner found that the Veteran's symptoms resulted in the (more severe) reduced reliability and productivity. Most importantly, the 2012 examiner did not have access to, and did not review the virtual record. Although VA treatment records were reviewed, the Veteran's primary psychiatric treatment is done through a private provider. In addition to scheduling the Veteran for an updated VA examination, the RO/AMC should also attempt to obtain any ongoing private or VA treatment records.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided treatment for his PTSD since 2010. The RO/AMC should attempt to obtain the records of any treatment identified by the Veteran, and all ongoing VA treatment records. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.
2. The Veteran should also be afforded a VA examination, to assess the current severity of the Veteran's PTSD. Access to virtual records must be made available to the examiner, and, the examiner must review the virtual records in conjunction with the examination. All appropriate tests and studies should be performed, to include an interview and a comprehensive mental status examination.
Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations of the Veteran's service-connected PTSD and discuss the impact of such symptoms on the Veteran's activities and social and occupational functioning. A Global Assessment of Functioning (GAF) score should be assigned, and the examiner should explain the basis for the assigned score.
3. After completion of the above development, the issue of the Veteran's entitlement to an initial disability rating in excess of 50 percent for PTSD (throughout the claims period on appeal) should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental statement of the case and be given an opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs